Professor H. Harry L. Roque, Jr.
Director, Institute of International Legal Studies, UP Law Center
Professor, Department of International Law and Human Rights, Philippine Judicial
Academy
Governing Council, Asian Society of International Law
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22 January 2013, the Philippines commenced
arbitration proceedings against China under
the compulsory and mandatory dispute
settlement procedure of UNCLOS (Annex VII)
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In its Claim, the Philippines asked the arbitral
tribunal to rule on three basic issues:
1. The validity of China’s nine-dash lines;
2. Low tide elevations where China has built
permanent structures should be declared as
forming part of the Philippine Continental shelf;
3.That the waters outside the 12 nautical miles
surrounding the Panatag Island (Scarbourough
shoal) should be declared as part of the
Philippines EEZ
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April, 2012, the BRP Gregorio Del Pilar, the
Philippines one and only warship, reported
that Chinese fishermen were engaged in
illegal fishing in the area.
Philippine authorities were prevented from
arresting the fishermen by Chinese
surveillance boats
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Shortly thereafter, China warned its nationals
against travel to the Philippines and banned
the entry of imported pineapples and
bananas from the Philippines
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On May 16, 2012, both the governments of China
and the Philippines imposed fishing ban in the
Scarborough Shoal.
By July 2012, China had erected a barrier to the
entrance of the shoal, and that vessels belonging
to Beijing's China Marine Surveillance and
Fisheries Law Enforcement Command were
deployed in the disputed shoal;
as of September 2012, Chinese government ships
remain around the shoal and have been turning
away Filipino vessels
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The Philippines has since characterized the
presence of Chinese vessels in the area as an
“invasion” and filed the arbitral proceedings.
China has not responded to the Philippine
notification and has not appointed its
arbitrator to the proceedings. It has declared
that it will not participate in the proceedings.
Foreign Ministry spokesman, February 2012:
“Neither China nor any other country lays claim to
the entire South China Sea”
Letter to UN Secretary-General from China’s UN
Mission, May 2009:
“China has indisputable sovereignty over the
islands in the South China Sea and the adjacent
waters, and enjoys sovereign rights and jurisdiction
over the relevant waters as well as the seabed and
subsoil thereof (see attached map)”
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“It is the basic principle of the international maritime
law that land dominates the sea. UNCLOS allows
coastal states to claim a 200-nautical-mile EEZ, but
coastal states have no right to harm the inherent
territory and sovereignty of other countries”
“Any attempt to use UNCLOS to change the territorial
sovereignty of a country is a violation of the
principles of international law, including UNCLOS”
“The maritime jurisdiction of the Philippines should
not infringe upon the territorial sovereignty of China
over the Huangyan Island”
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Article 286
Subject to section 3, any dispute
concerning the interpretation or
application of this Convention shall,
where no settlement has been
reached by recourse to section 1, be
submitted at the request of any party
to the dispute to the court or tribunal
having jurisdiction under this
section.
 Since
Php and China have not
chosen specific procedure to
resolve their disputes, they fall
under Annex VII 0f the
Convention: binding
arbitration
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Philippine view: China as a party to the
UNCLOS is subject to Art 286. Countries that
ratified UNCLOS are deemed to have
abandoned claims to maritime territory not
provided by Convention
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Chinese view (Judge Xue Hanqin): China’s
declaration is an opt out of the dispute
settlement procedure of UNCLOS. “The 40
countries that ratified UNCLOS 1 but
registered declarations are not deemed to
have waived all their historical claims to
maritime territory
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Issues addressed by its arbitration
claims are issues of interpretation and
application: i. validity of nine-dash
lines, ii. low water marks as part of
continental shelf , iii. nature of waters
around Panatag as Philippine EEZ.
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Dispute is about conflicting claims to territory
and hence, UNCLOS is inapplicable (Bolstered
by 2009 Philippines Baselines Law )
Its nine-dash lines are maritime zones
generated by its land territory. “Huangyang”
includes Macclesfield bank and Scarborough
which it views as an island that spans 202
nautical miles.
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Hudge Xue: “since the end of World War II,
the international community, has
acknowledged the existence of China’s ninedash lines with no country ever questioning it
until oil resources were discovered in the
area”.
“International law does not provide for clear
rules on historic claims to territory”
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20 Cases under ITLOS; 8 under arbitration
with PCA
Interpretation: dispute as to interpretation
and application of specific provisions of
UNCLOS
“dispute: disagreement as to interpretation,
fact or law” (Headquarters Advisory Opinion)
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Dispute settlement Procedures may apply
general principles of international law.
Tribunal may issue judgment on use of force
and not just strictly issues on UNCLOS
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1. “disputes involving delimitations
2. disputes concerning military activities,
including military activities by
government vessels and aircraft engaged
in noncommercial service,
3. disputes concerning law enforcement
activities in regard to the exercise of
sovereign rights or jurisdiction”
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1. Issues do not involve delimitation. Calls
merely for interpretation whether China’s 9dash lines comprise China’s internal waters
(34), territorial sea ( 8), or EEZ (55).
Similarly, declarations that islets are low
water marks (121 and 5 ) ( Malaysia v
Singapore, ICJ) and declaration that waters
around Panatag comprise Php EEZ (57) do
not involve delimitation
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Since maritime zones generated by land
territory, validity of 9 dash lines entail
delimitation of conflicting land and maritime
boundaries with Phl.
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Philippines has attempted to reach agreement
since 1987 to no avail. Hence, arbitral claim
is ripe for adjudication Chinese
Chinese View (Judge Xue) “arbitration is a
violation of a substantive obligation of the
parties to negotiate under the Code of
Conduct on the SCS between ASEAN and
China
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Moreover, UNCLOS require PhP and China to
delimit bilaterally through negotiations and
agreement at the first instance.
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articles 74(3) and 83(3) provide that if
delimitation cannot be effected by
agreement:
[T]he States concerned, in a spirit of
understanding and cooperation, shall make
every effort to enter into provisional
arrangements of a practical nature and during
the transitional period, not to jeopardize or
hamper the reaching of final agreement. Such
arrangements shall be without prejudice to
the final delimitation.
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The existence of a dispute is similarly not
precluded by the fact that negotiations could
theoretically continue. Where there is an
obligation to negotiate it is well established
as a matter of general international law that
that obligation does not require the Parties to
continue with negotiations which in advance
show every sign of being unproductive
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Context behind China’s offer of joint use.
Rejected by Php on ground that sovereign
rights are exclusive in character
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WON state parties declarations are in the
nature of opt out of the compulsory dispute
settlement procedure of UNCLOS
WON state parties to UNCLOS have renounced
all historic claims to maritime territory not
provided by UNCLOS
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WON China’s view that nine-dash lines are
generated by land territories will prima facie
divest arbitral body of its jurisdiction or
whether tribunal can rule on the validity of
such a characterization in ruling on its own
competence.
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Cardinal Principle is that Tribunal is sole
judge of its own competence.
China disadvantaged by not arguing
preliminary objections. It was given until
March, 2014 to respond to Arbitral claim and
until December 15, 2014 to file its CounterMemorial
Judge XUE: ““no country can fail to see the
design” of the Philippine … It mixed up
jurisdiction with the merits”.
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1. Dispute Settlement Procedure is
Mandatory. Judeg Xue: “Declaration is an opt
out from dispute settlement procedure”
2. Use of Force is contrary to both UNCLOS
and UN Charter prohibition on Use of Force.
◦ A) excluded Phl fishermen from Panatag using
armed “government surveillance vessel” and
targetting them with water canon;
◦ B) Recent rush in the building of artificial islands in
disputed shoals
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3. Implementation of a Defense Maritime
Policy which envisions “Sea Denial Capability”
in the West Philippine Sea by 2020 despite
conflicting claims to maritime and land
territory. Acquisition of territory by conquest
4. Insistence in historic claims for 9 dash
lines despite it being contrary provisions of
UNCLOS
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5. Insistence that its declarations in UNCLOS
preserved its historic claims to territory even
if these claims can find no basisunder
UNCLOS
6. Threat to Withdraw from UNCLOS
7. Possible defiance of Finding of UNCLOS ad
hoc arbitral body
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8. Over-all conduct is contrary to letter, spirit
and intent of UNCLOS: constitution of the sea
adopted by consensus, prohibiting
reservations, in order to do away with the use
of force in the settlement of disputes arising
from maritime territories.